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Good faith bargaining & dismissing employees

The Fair Work Commission recently confirmed that the dismissal of an employee for reasons which are industrially motivated and connected to the bargaining process can constitute ‘capricious and unfair’ conduct which could undermine freedom of association and therefore be a breach of the good faith bargaining requirements.

The Commission broke new ground when it made an interim order to reinstate an employee of 14 years – who was also an AMWU member, shop steward and part of the bargaining team – following his dismissal in March 2016.

The employer, Wedderburn – which was involved in protracted bargaining with its employees and the AMWU – maintained that the dismissal, purportedly for failing to follow lawful and reasonable directions, was fair. The employee was dismissed after he refused to finish a job on the basis that doing so would be contrary to protected industrial action banning the performance of overtime.

The Commission granted the interim order for reinstatement, being satisfied it was arguable that:

the dismissal was capricious, unfair and motivated by Wedderburn’s belief that the employee was responsible for the industrial action

the employee’s conduct was protected and, accordingly, the dismissal was both unfair and a contravention of general protections

terminating the employment of a shop steward with a long-standing role in the bargaining process would undermine collective bargaining.

Employers are reminded to be cautious when looking to dismiss employees for conduct which is intertwined with industrial issues. In this case, not only was the employer’s conduct found to be a breach of the good faith bargaining requirements, but also an arguable breach of the general protections provisions in the Fair Work Act 2009, which could give rise to the imposition of a civil penalty.